Dispatches: Reviewing non-free images

You may remember that the 11 August 2008 Dispatch discussed the reviewing of "free" images. In this sequel, we discuss the reviewing of "non-free" images. As a refresher, the distinction between "free" and "non-free" is as follows:

"Free" images are in the public domain or are copyrighted but have no restrictions on derivatives, commercial use and permission for use.

"Non-free" images (used on Wikipedia with a "fair use" justification) retain restrictions on derivatives, commercial use and permission for use; therefore, we use them only under the restrictive terms of the non-free content criteria.

Background

Conundrum

The Wikimedia Foundation has adopted two positions, among others, that taken together pose a conundrum:

Vision: to help create "a world in which every single human being can freely share in the sum of all knowledge."

Mission: "... to empower and engage people around the world to collect and develop educational content under a free license or in the public domain, and to disseminate it effectively and globally."

The conundrum is that freely sharing in the sum of all knowledge and developing content under a free license or in the public domain are inherently at odds. There is a huge body of notable and important works whose copyrights remain fully reserved. How, then, can the English Wikipedia best articulate and convey an understanding of such works while still adhering to its Mission of developing content under a free license? Is one more important than the other?

On 23 March 2007, the Foundation passed a licensing policy resolution that allows individual projects to make their own determinations. With the exception of the Wikimedia Commons, projects were given the option of each developing an Exemption Doctrine Policy (EDP).[1] The English Wikipedia elected to allow the inclusion of "non-free" content.[2] The non-free content criteria (NFCC) serve as its EDP.

Fair use

Fair use is a provision in US copyright law that, in certain circumstances, limits a copyright holder's exclusive rights to reproduce or to authorize others to reproduce a work. Copyright law sets forth:

"... fair use of a copyrighted work, ... for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright" (17 USC Sec. 107).

The existence of fair use is what allows the use of "non-free" content to even be an option in the first place; while US fair-use law establishes legality in a technical sense, our NFCC are stricter than the requirements of the law so that Wikipedia's Mission can be pursued worldwide. Merely qualifying as fair use under US law may not be enough to allow the use of an image on Wikipedia. For example, US copyright law allows the fair use of a fully copyrighted photo of the Capitol building, but using it, even in our article on that building, would violate Wikipedia's NFC Criterion 1.

Reviewing "non-free" images

"Non-free" images are, in a sense, simpler to review than "free" images. As there is no burden to prove or support a copyleft license or a public domain claim, knowledge of copyright law is not generally necessary to review "non-free" images. Additionally, the NFCC quite literally function as a checklist of considerations relevant to every "non-free" image. If an image passes all of the criteria, its use is supported. "Free" images do not have such a checklist.

Non-free content criteria

As explained above, the NFCC are a significant departure from statutory fair-use considerations.[3] The NFCC are deliberately more restrictive than fair use for, among others, the following reasons:

Encourage creation and use of "free" content: Given the Mission to "collect and develop educational content under a free license or in the public domain", the NFCC serve to dissuade the collection and development of "non-free" content. For example, without the criterion of "no free equivalent" (see Criterion 1 below), a Wikipedian could simply download and use a fully copyrighted image of the Empire State Building. With this criterion, however, Wikipedians must work towards the Mission by developing a "free" version (by, for example, freely licensing their own image).

Minimize legal exposure: Voluntarily adhering to standards stricter than actual law is likely to minimize any litigation.

Support the development of a quality encyclopedia—strict standards help ensure judicious selection and use of images.

A "non-free" image must meet all ten criteria and their sub-criteria.

Wikipedia-wide criteria

Note that examples are only represented to pass the indicated criterion. Examples may or may not comply with other NFC criteria.

Several non-free content criteria are universally applicable in that they involve considerations not directly pertaining to an image's use or position in a particular article. These criteria are generally self-explanatory and typically not open to interpretation or subject to disagreement.

2. Respect for commercial opportunities. Non-free content is not used in a manner that is likely to replace the original market role of the original copyrighted media.

Reviewers should consider the commercial activities of the image's copyright holder and the image's role in those activities.

Example that fails: An image of a current event authored by a press agency. Certain press agencies market photographs to media companies to facilitate illustration of relevant commentary. Hosting the image on Wikipedia would impair the market role (derivation of revenue), as publications (such as Wikipedia) would normally need to pay for the opportunity to utilize the image.[4]

Example that passes: An image of a book cover authored by the book's publisher. The publisher uses the book cover as advertisement ("passively" as the book's decoration and perhaps "actively" in, for example, a poster format). Hosting the image on Wikipedia would not impair the market role (advertisement).

4. Previous publication. Non-free content must have been published or publicly displayed outside Wikipedia.

One of the protections afforded by copyright is the right to control the publication of a work, including whether the work is to be published in the first place. Authors who have not published or publicly displayed a work have implicitly chosen a degree of privacy for their work. To effectively force publication by posting such a work on Wikipedia would be fundamentally unfair to the author and may have other negative implications (e.g. disruption of exclusivity agreements, planned unveiling, etc.) This criterion, further, is an extension of the site-wide policy of not publishing information not previously published. Reviewers should consider the image's source (i.e. whether it is sourced to a publication) and the image's subject. The nature of image use and sourcing on Wikipedia makes satisfaction of this criterion automatic in most cases.

Example that fails:: An image from an upcoming video game uploaded by one of the game's developers (i.e. an image not publicly released in a trailer, press package, etc.) This, obviously, is not a likely scenario.

Example that passes:: An image obtained from the internet or scanned/captured from a published work (e.g. book, postcard, video game, etc.)

Images, like prose, are subject to content standards (as implicitly defined in the {{Policy list}} template). Reviewers should check that the subject matter does not violate policies such as WP:BLP, WP:NPOV, etc.

Example that fails: The use of this image to illustrate David Hasselhoff would likely violate the necessity of maintaining "basic human dignity" (WP:BLP). Although perhaps encyclopedic in that it illustrates a notable person, the image fails to maintain "a high degree of sensitivity".

7. One-article minimum. Non-free content is used in at least one article.

Wikipedia is not a media repository. Additionally, if a "non-free" image is not being used, it, by definition, cannot be making a significant contribution to a reader's understanding of a topic (see Criterion 8). In the context of this Dispatch (scrutinizing of images being used in an article), this criterion is automatically satisfied.

9. Restrictions on location. Non-free content is allowed only in articles (not disambiguation pages), and only in article namespace, subject to exemptions.

Like Criterion 7, this criterion has logical ties to Criterion 8. A "non-free" image is not expected to be able to make a significant contribution to a reader's understanding if it is not used in the context of critical commentary. The Wikipedia namespace, for example, contains information regarding the workings of Wikipedia. It seems illogical, therefore, that a "non-free" image would be needed to convey understanding of a "free" encyclopedia. In the context of scrutinizing of images being used in an article, this criterion is seldom at issue. However, reviewers should check to ensure that image galleries, if any, do not contain "non-free" images.

As per WP:IUP vis-a-vis Criterion 6, an image must attribute the source (e.g. the website from which the image was taken, the book from which it was scanned, etc.) Additionally, if, for example, an image of a book cover is sourced to Amazon.com, additional attribution of the actual copyright holder (e.g. the publisher or artist) is needed.

Example that passes: The same image (as of this revision) contains the source of the image itself (the Rockford Register Star) and attribution of the author/copyright holder (Boris Yaro of the Los Angeles Times).

Again, this sub-criterion is redundant to Criterion 6 and WP:IUP. Reviewers should ensure the image has a copyright tag and that the copyright tag is appropriate for the image (e.g. the {{Non-free album cover}} tag would not be appropriate for an image of a book cover).

C. The name of each article (a link to the articles is recommended as well) in which fair use is claimed for the item, and a separate, specific fair-use rationale for each use of the item, as explained at Wikipedia:Non-free use rationale guideline. The rationale is presented in clear, plain language and is relevant to each use.

See "The rationale" section below.

Article-specific criteria

Note that examples are only represented to pass the indicated criterion. Examples may or may not comply with other NFC criteria.

Unlike the preceding criteria, an image's satisfaction of the following criteria involves considerations of the way in which it is utilized in a given article and its relationship with the article's other images.

1. No free equivalent. Non-free content is used only where no free equivalent is available, or could be created, that would serve the same encyclopedic purpose. Where possible, non-free content is transformed into free material instead of using a fair-use defense, or replaced with a freer alternative if one of acceptable quality is available; "acceptable quality" means a quality sufficient to serve the encyclopedic purpose.

After reading an image's purpose, as articulated by its rationale, reviewers should consider whether an equivalent "free" image exists or could reasonably be made to exist that could instead "serve the encyclopedic purpose". Alternatively, reviewers should consider whether prose could fulfill the purpose. This criterion generally precludes "non-free" images of text (e.g. newspaper articles and plaques) as well as still-living people, still-occurring events and still-existent objects, buildings, etc.

It may be helpful to search archival sites such as the Library of Congress for public domain images, ask the copyright holder(s) whether the image could be "freely" licensed or enlist the talents of the artistically-inclined. Consider, for example, the following situations and methods disallowing the use of "non-free" images:

Availability of "free" content: It would not be necessary to use a "non-free" image of the United States Capitol, as numerous "free" images are available at the corresponding Commons page.

Transformation of "non-free" content into "free" content: A "non-free" image of Ritter Sport could be transformed into a "free" image (mere text and simple geometric shapes are not eligible for copyright protection) and maintain the same encyclopedic purpose of identifying the product/brand.

It is not uncommon for these considerations to involve interplay with Criterion 8. That a person appeared on the cover of a magazine, for example, generally would not need an image of the cover to convey the understanding that the appearance occurred. In such a case, simply stating "John Smith appeared on the cover of Fictitious Magazine on 1 January 2002" would be sufficient.

3. Minimization:

3A. Minimal usage. Multiple items of non-free content are not used if one item can convey equivalent significant information.

Minimal use does not have a precisely defined numerical value. Some articles may need several "non-free" images to adequately convey the necessary understanding, while others may not need any. Indeed, there is no automatic entitlement to use non-free content in an article. Reviewers should look for unnecessary redundancy and, if applicable, ways to consolidate multiple "non-free" images. Consider the following examples:

Gameplay element (the blue bars represent a heads up display and inventory management)

Setting element (the medical deck)

Consolidated image

In this example, the article sought to illustrate certain gameplay elements (a heads up display and inventory management) and to illustrate an example setting (the medical deck). The nature of the images, however, was such that one image was capable of simultaneously illustrating both the gameplay elements and the setting. One image, therefore, was able to fulfill the same encyclopedic purpose of two (i.e. it "convey[s] equivalent significant information").

Consolidation is generally most applicable to character sections of media articles and character list articles. In both cases, it is typically possible to use an image of the entire cast, multiple characters, etc. instead of several images of individual characters.

In this example, the article contains unnecessary redundancy. The solitary logo, bottle, in-store display and box images all clearly display the company's logo. The solitary logo, therefore, is superfluous in the presence of the other three images, as those images convey "equivalent significant information" (identification of the brand).

Also note that, as of the aforementioned revision, the article has an opportunity for consolidation, as a less angled photo of the in-store display could better capture the food bars (not depicted in the example image above), thus eliminating the need for the dedicated food bar image.)

3B. Minimal extent of use. An entire work is not used if a portion will suffice. Low- rather than high-resolution/fidelity/bit rate is used (especially where the original could be used for deliberate copyright infringement). This rule also applies to the copy in the Image: namespace.

Although generally more at issue for audio clips, reviewers should check to ensure that images do not contain more "non-free" material than necessary.

Example that fails: The Super Smash Bros. Brawl cover would not be appropriate to illustrate an article on Mario, as it contains additional, unnecessary "non-free" characters.

Example that passes: This image of a solo Mario does not contain superfluous "non-free" material.

Low-resolution is not precisely defined by the NFCC. Several rationale templates,[6] however, set forth a size of approximately 0.1 megapixels (ca. 333x333 pixels), which is generally considered a good rule of thumb. At 0.1 megapixels, a typical image is decidedly low resolution and will tend to be approximately 300 pixels in width (once the explicit maximum thumbnail size per MOS:IMAGES and now the implicit maximum per WP:PIC). Utilizing a higher resolution, however, is acceptable if there is a compelling reason to do so (e.g. to discern an important detail). Generally, reviewers should check to ensure that an image is no larger than necessary to fulfill its encyclopedic purpose.

Example that fails: This revision of a mini game in Bioshock had a resolution of 0.48 megapixels (800 x 600 = 480,000 pixels). This resolution was larger than necessary for the image to fulfill its purpose.

Example that passes: The same image (as of this revision) was reduced to 0.07 megapixels (300 x 225 = 67,500 pixels). This is below the rule of thumb (0.1 megapixels) and still large enough to fulfill its purpose.

8. Significance. Non-free content is used only if its presence would significantly increase readers' understanding of the topic.

This criterion is perhaps one of the most contentious policy elements on Wikipedia. There is disagreement as to what, exactly, constitutes a "significant" increase in understanding. Significance cannot be precisely defined. What is significant to one person's understanding may be insignificant to someone else (a reality that underscores the necessity for a detailed rationale and purpose statement to articulate the contribution). Interpretation of Criterion 8 is assisted somewhat by its often close interplay with several other criteria (e.g. Criterion 1 and Criterion 3A). Ultimately, however, significance is a matter of judgment.

There are several things reviewers can consider that may assist in determining whether a "non-free" image is contributing significant understanding:

Abstractness: How accessible is the topic being illustrated to a layman (i.e. person of reasonable intelligence)?

This is a consideration related to Criterion 1. Is the concept or subject being depicted such that an image thereof is truly needed? For example, an article on a television episode taking place in a desert probably does not need a "non-free" screenshot of the desert to convey that understanding. In such a case, a "non-free" image would not be contributing significantly more than prose to a reader's understanding.

Absence: How would the article and its ability to communicate understanding be impacted by the absence of the image?

Leibovitz v. Paramount Pictures Corp., for example, is an article about copyright infringement litigation. The nature of the case is such that understanding of the compliant, the defense and the decision requires visualization of the images at issue. Without the images, discussion of the importance of composition, lighting and other visual elements to the final outcome would not be readily understandable.

Other images: Does the article contain other, similar images?

This is a consideration related to Criterion 3A. Articles may, at times, use a complete series of "non-free" images (for example, every last logo ever used by an organization or every last box cover used for a piece of software), when only a "sampling" of one or several of the revisions/versions would truly be necessary to convey understanding. In such cases, certain images may not be contributing significant understanding above and beyond what the other images are providing.

Pertinent discussion: Does the article directly discuss the image or its contents in detail?

A "non-free" image is not expected to be contributing significantly to a reader's understanding in the absence of related commentary (i.e. an image should not be used as mere "eye candy"). If, for example, an article contains a section on "pop culture", a "non-free" image of a pop culture occurrence, used as a mere example, will not likely be making a significant contribution in the absence of actual, critical discussion (i.e. not just a mere mention).

Relationships: How does the image relate to the article and/or section topic?

There is a difference between being significant to the topic and being significant to the understanding of the topic. A "non-free" image must be the latter. For example, The Coca-Cola Company is the world's largest consumer of sugar and is, therefore, unquestionably significant to that topic (sugar).[7] Despite this significance, a "non-free" Coca-Cola image would not be significant to the understanding of the topic.

The rationale

The use of a "non-free" image requires a justification for its usage be presented on its image description page. This justification is called a "non-free use rationale" or, alternatively, a "fair use rationale". The purpose of the rationale is to articulate how the image meets the NFCC and to assist others in determining the appropriate application of the image. In so doing, the rationale should allow others to determine whether use of the image is indeed appropriate for Wikipedia.

A separate, specific rationale must be provided each time the image is used in an article. Although seemingly redundant, this is necessary as an image should be fulfilling a unique purpose in each article. Image:WW2 Iwo Jima flag raising.jpg, for example, is itself the topic of the Raising the Flag on Iwo Jima article, while, in the Joe Rosenthal article, it is illustrative of the work for which the topic (Rosenthal) received the Pulitzer Prize - one image, two very different purposes.

Necessary components

The non-free use rationale guideline (WP:FURG), incorporated into the NFCC by reference, requires a rationale to do the following:

Explicitly name the article to which the rationale applies.

State what proportion of the copyrighted work is used and to what degree it competes with the copyright holder's usage

State whether the resolution has been reduced from the original

State the purpose the image serves in the article

State the degree to which the image is replaceable by a free content image

Reviewers should check to ensure that the rationale for the relevant article provides statements addressing these components. It is generally advisable to use the {{Non-free use rationale}} or a topic-specific template, as it provides fields for the necessary components (i.e. a passive prompt to provide the necessary statements) and is more readily accessible than a rationale formatted as a paragraph.

Purpose writing

WP:FURG requires a "detailed" and "specific" rationale. NFCC require the rationale to be "presented in clear, plain language and is relevant to each use". Writing a solid rationale, further, is often the best way to demonstrate satisfaction of Criterion 8. A well-written rationale will be explicit and articulate an actual purpose (not just a function, as is too often the case). Consider the following examples:

Purpose statement (as of this revision): "Illustrates the entire subject of the article."

Why it doesn't work: This statement has several problems: it is imprecise and it doesn't really articulate a purpose.

The "entire subject" of Age of Empires II contains, among others, gameplay, development and reception. The image does not depict those aspects. What it does depict, however, is the video game's packaging.

The second problem, regardless of what is being depicted, is that the statement does not articulate why the image is present (i.e. its purpose). A statement of "Illustrat[ing] ... the article" is merely one of function. A purpose statement goes further; what is the contribution the image is making to the reader's understanding?

How it could be improved: An alternative statement of, for example, "This image illustrates the packaging of Age of Empires II. This packaging, the visualization chosen by the developers to represent the product,[8] is used in this article to facilitate, among others, identification and accurate representation of the video game in the context of critical commentary" is detailed and specific. It states what is actually being depicted (packaging) and why it is being depicted (to facilitate identification and accurate representation of the video game).

Purpose statement (as of this revision): "It illustrates the beginning of the riots, showing the type of people who participated: primarily young men with more liberal clothing and hair, contrasting with the conservative appearance of the police. The value differences between riot participants and the police is reflected in this image, and directly led to the cause of the riots. It is the only published image of the riots during the first evening when they spontaneously began."

Why it works: This statement goes beyond merely saying "It illustrates the riots". It articulates what is being depicted and the understanding the reader is intended to derive (contrast of the attire, appearance and the so reflected values of the participants).

Notes

^The EDP could be "in accordance with United States law and the law of countries where the project content is predominantly accessed (if any), that recognizes the limitations of copyright law (including case law) as applicable to the project, and permits the upload of copyrighted materials that can be legally used in the context of the project."

^Those familiar with intellectual properties may recognize this as, essentially, a verbose way of saying "trade dress"; the requirement of "plain language", however, precludes the use of esoteric terminology.